Case Information

*1 E-filed: 1/21/2008 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH, No. CV-00-20905 RMW ORDER GRANTING IN PART AND DENYING IN PART RAMBUS'S MOTION IN LIMINE No. 12 TO PRECLUDE THE PLAYING OR READING OF PRIOR TESTIMONY IN OPENING STATEMENTS Plaintiffs, v. [Re Docket No. 2845] RAMBUS INC.,

Defendant.

RAMBUS INC., No. C-05-00334 RMW

Plaintiff, [Re Docket No. 821] v.

HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC.,

SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,

NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants.

RAMBUS INC., No. C-06-00244 RMW Plaintiff, [Re Docket No. 455] v. MICRON TECHNOLOGY, INC., and MICRON SEMICONDUCTOR PRODUCTS, INC.

Defendants.

Trial in these three consolidated cases is set for January 29, 2008. The Manufacturers 1 hope 21

to prove that Rambus, among other things, monopolized or attempted to monopolize six technology 22

markets. The technology markets cover various technologies essential for making DRAMs.

This order addresses Rambus's twelfth motion in limine to preclude playing or reading prior 24

testimony in their opening statements. The motion simply seeks to limit counsels' opening 25

26 1 For purposes of this order, the court collectively refers to the Hynix, Micron, and Nanya entities as "the Manufacturers." 27

*3 statements to descriptions of what the evidence will show, and to prevent counsel from reading prior testimony or playing snippets of video depositions. The court has reviewed the papers and considered the arguments of counsel.

There is sparse case law on whether a court should permit parties to play portions of video depositions in their opening statements. Indeed, the parties' briefing do not cite any cases involving civil jury trials. 2 Nonetheless, one respected treatise recommends the practice as "very effective" advocacy. Jones, Rosen, Wegner, & Jones, Rutter Group Practice Guide: Federal Civil Trials & Evidence ¶¶ 6:272-6:275 (2007).

The court is less sanguine regarding the practice. Videotaped testimony may seem more believable or important to the lay jury because it can both see and hear the witness . During argument, Rambus submitted that it cannot "preview" what its live witnesses will look like and testify to; it can only generally describe what it hopes to elicit. On the other hand, if unrestricted, a video deposition can be shown once in opening, again during trial (at least once), and in closing in the exact same form. Repeatedly showing the same few deposition segments seems to exalt the relevance of those videotaped shreds of evidence over live testimony. Cf. Federal Judicial Center, Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial , 156 (2001). // // //

2 The court has found one written order from the Western District of Wisconsin where Judge Crabb permitted a party to play segments of a video deposition in its opening statement. MBI Acquisition Partners, L.P. v. Chronicle Pub. Co. , 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002). *4 Accordingly, the court grants Rambus's motion with respect to segments of videotaped deposition testimony. Neither side shall use any videotaped deposition testimony in its opening statement. With respect to reading deposition transcripts, the court does not share Rambus's concerns about a lay jury giving undue weight to a verbatim reading. Accordingly, the remainder of Rambus's motion is denied. If the parties wish to read a portion of a deposition transcript in their opening statement, they are to exchange any excerpt with opposing counsel sufficiently in advance of opening statements so that the court can rule on any dispute over use.

DATED: 1/21/2008

RONALD M. WHYTE United States District Judge *5 Notice of this document has been electronically sent to:

Counsel for Plaintiff(s):

Craig N. Tolliver Pierre J. Hubert Brian K. Erickson David C. Vondle Gregory P. Stone Carolyn Hoecker Luedtke Peter A. Detre Burton Alexander Gross Steven McCall Perry Jeannine Y. Sano ctolliver@mckoolsmith.com

phubert@mckoolsmith.com berickson@dbllp.com,

dvondle@akingump.com gregory.stone@mto.com luedtkech@mto.com

detrepa@mto.com

burton.gross@mto.com,

steven.perry@mto.com

sanoj@howrey.com

Counsel for Defendant(s):

Matthew D. Powers David J. Healey Edward R. Reines John D Beynon Jared Bobrow Leeron Kalay Theodore G. Brown, III Daniel J. Furniss Jordan Trent Jones Kenneth L. Nissly Geoffrey H. Yost Susan Gregory van Keulen Patrick Lynch Jason Sheffield Angell Vickie L. Feeman Mark Shean Kai Tseng matthew.powers@weil.com

david.healey@weil.com

Edward.Reines@weil.com john.beynon@weil.com jared.bobrow@weil.com leeron.kalay@weil.com tgbrown@townsend.com djfurniss@townsend.com jtjones@townsend.com kennissly@thelenreid.com gyost@thelenreid.com svankeulen@thelenreid.com plynch@omm.com jangell@orrick.com vfeeman@orrick.com mshean@orrick.com hlee@orrick.com Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Dated: 1/21/2008 TSF

Chambers of Judge Whyte